Yessenia H.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

May 9, 2018

0120161648 (E.E.O.C. May. 9, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Yessenia H.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120161648
Agency No. DON-15-60169-01509

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 22, 2016, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Exceptional Family
Member Program Case Worker, NF-0101-04, at the Agency’s facility in Parris Island, South
Carolina. On March 10, 2015, Complainant filed a formal complaint alleging that the Agency
subjected her to discrimination on the bases of her race (Black) and sex (female) when:

1. In the fall of 2010, her supervisor (S1) returned to the office parking lot after leaving
for the day, waited for her to exit the building, and glared at her until she left;
2. In September 2010, S1 encroached on her personal space during a discussion;
3. On June 11, 2011, S1 asked her if she was menstruating;
4. On February 10, 2012, S1 followed her;
5. On August 12 and 14 2012, S1 sent an email to the entire department targeting her;
6. On October 23, 2012, S1 manipulated her work in order to write her up for
incompetence and insubordination;
7. On October 23, 2012, management did not respond in a timely manner to her

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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request to have a modified schedule removed from the share drive;
8. On May 13, 2014, S1 responded to a client concerning Complainant’s duty
limitations; and
9. On March 10, 2015, S1 dismissed her from a staff meeting.

In its final decision, the Agency dismissed claims (1)-(8), pursuant to 29 C.F.R. §1614.107(a)(2),
for untimely EEO counselor contact. Additionally, the Agency dismissed claim (9), pursuant to 29
C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that
Complainant failed to show that she was aggrieved.

ANALYSIS AND FINDINGS

First, with respect to claims (1)-(8), EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that
complaints of discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in
the case of a personnel action, within 45 days of the effective date of the action. The Commission
has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to
determine when the 45-day limitation period is triggered. See Complainant v. Department of the
Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered
until a complainant reasonably suspects discrimination, but before all the facts that support a
charge of discrimination have become apparent.

EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that she was not notified of the time limits and was not otherwise aware of
them, that she did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence she was prevented by circumstances
beyond her control from contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.

The record discloses that the most recent of the alleged discriminatory events in claims (1)-(8),
occurred on May 13, 2014. However, Complainant did not initiate contact with an EEO Counselor
until March 11, 2015, which is beyond the 45-day limitation period. Complainant has not proffered
any evidence or arguments for an extension of the time limit. Moreover, we determine that the
record contains sufficient documentation reflecting Complainant had, at a minimum, constructive
notice of the limitation period for timely contacting an EEO Counselor. Therefore, the Agency
properly dismissed claims (1)-(8) for untimely EEO Counselor contact.

With respect to claim (9), an agency shall accept a complaint from any aggrieved employee or
applicant for employment who believes that he or she has been discriminated against by that
agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R.
§§ 1614.103, .106(a). The Commission’s federal sector case precedent has long defined an
“aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
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When the complainant does not allege she is aggrieved within the meaning of the regulations, the
agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. §
1614.107(a)(1).

Here, we concur with the Agency that Complainant failed to establish that she suffered harm or
loss with respect to a term, condition, or privilege of employment for which there is a remedy.
Complainant has not stated how she was harmed by being removed from the staff meeting.
Accordingly, claim (9) does not state a viable claim of discrimination.

CONCLUSION

The Agency’s final decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

May 9, 2018
Date